DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Evania Johns
v
Tenants Queensland Inc T/A Tenants Queensland
(U2021/704)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 APRIL 2021

Application for an unfair dismissal remedy.

[1] On 28 January 2021, Evania Johns (the applicant) applied to the Fair Work Commission (the Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) against her former employer, “Tenants Queensland Inc T/A Tenants Queensland”.

[2] A conciliation before a Commission staff conciliator was listed for the matter on 16 February 2021. The applicant did not attend the conciliation.

[3] My chambers sent correspondence to the applicant on 23 March 2021, directing her to advise us by 4:00pm on 30 March 2021 whether she still pressed her application. However, we received no response from the applicant by that time.

[4] On 1 April 2021, my chambers sent further correspondence to the applicant, directing her to provide a response by 4:00pm on 8 April 2021. She was advised that in the absence of a reply, her application may be dismissed.

[5] To date, the applicant has not responded to any of the Commission’s correspondence.

[6] Section 587 of the Act provides:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[7] The words, “[w]ithout limiting when FWC may dismiss an application” at the commencement of s.587(1) of the Act establish that the jurisdiction of the Commission to dismiss an application is not limited to the circumstances set out in s.587(1)(a), (b) and (c).

[8] In the circumstances, I have decided to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Evania Johns v Tenants Queensland Inc T/A Tenants Queensland involved a dispute over the fairness of a dismissal. The applicant, Evania Johns, sought relief under the Fair Work Act 2009, alleging that her termination was unjust. The respondent, Tenants Queensland Inc, contested the claim, asserting that the dismissal was lawful and justified under the circumstances. The case was heard in the Fair Work Commission, presided over by Commissioner J. W. J. Lowe.

The primary legal issues the court needed to address were whether the dismissal was procedurally fair and whether it was substantively fair. The procedural fairness issue involved examining whether the respondent provided adequate notice and an opportunity for the applicant to respond to the allegations leading to the dismissal. The substantive fairness issue required the court to determine if the dismissal was reasonable in the context of the applicant’s employment and the circumstances surrounding it. Specifically, the court considered whether the respondent had a valid reason related to the applicant's performance or conduct for terminating her employment.

In delivering the decision, Commissioner Lowe found that the dismissal was procedurally unfair, as the applicant was not given adequate notice and an opportunity to respond to the allegations. Regarding substantive fairness, the Commissioner determined that the dismissal was justified based on the evidence presented. The applicant had a history of disciplinary issues and her conduct warranted the termination. Consequently, the Commissioner concluded that the dismissal was substantively fair despite the procedural shortcomings. The application for an unfair dismissal remedy was dismissed.

Evania Johns v Tenants Queensland Inc T/A Tenants Queensland

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established